We hope that law is about justice, but often it’s about semantics as my thoughts on today’s question demonstrate.  My correspondent is a volunteer with the NSW Rural Fire Service who:

… recently became aware of an email sent by an RFS brigade Captain to his brigade members saying:

“It has come to my attention that some members have altered or are planning on altering issued PPC (Bushfire Jackets/Pants and CABA Jacket and Pants). This is NOT to happen as it voids the PPC Australian Standard (AS) compliance for protection and integrity.

If any PPC has been altered it is unable to be used and will not be re-issued free of charge. You WILL have to pay for your replacement if you have altered any PPC at you own will without approval.

The only way for PPE/C to be altered is by the Original Equipment Manufacturer (OEM) to retain Compliance to AS.

All members are entitled to PPE/C that fits and sometimes the sizes provided may not fit safely, this is where you can request made to measure PPC fitted by consulting with you friendly FCC staff. This will be arranged through the PPC Manufacturer.

Please remember that NO PPC IS TO BE ALTERED whatsoever, and if you are found to have altered PPC you will NOT be allowed to use it, will have to return it and pay for your replacement gear.”

Firstly, I am unable to say if the Captain in question is personally ‘making up stuff’ in his claim members will be required to pay for their issued PPC or if that message has come from paid staff members higher up at District level. Certainly it’s not something mentioned anywhere in RFS state policy documents. My feeling is that the Captain concerned is just ‘making up stuff’ for their own purposes.

I’ll touch briefly for background purposes first on the issue of ‘alterations’ to PPC. The applicable RFS Service Standard  5.1.5 says at 2.5, “PPC garments are not to be modified or changed in any way.” This actually contradicts Appendix 2 of SOP 5.1.5-2, part of the same attached service standard where it states ‘name, rank, qualification/s and brigade name are to be sewn onto the pocket flaps’ – something which can only be done by the member as the PPC is provided without them attached.

The usual only other alteration traditionally done by members and this has occurred for years has been taking up of trouser legs (using a non flammable thread such as kevlar thread) as issued items are often too long especially for short and stout people, and the PPC is unsafe if people can trip over too long PPC trouser legs or the legs contact the ground and soak up contaminants such as oils and fuel at MVA’s etc.

There is no suggestion that any member of the brigade in question has wilfully damaged or destroyed any PPC.

The RFS recently has introduced made to measure PPC for members who do not fit standard sizes, however it can take 3 to 6 months and even longer for PPC to be received under this process.

So, onto the question of RFS volunteers being required to pay for issued PPC from a legal perspective.

1. How does this fit under WHS law? My understanding is that it is illegal for the RFS to charge members for the provision of PPC which they must issue to an active member. I refer to the Work, Health and Safety Regulation 2017 (NSW), clause 44 which effectively puts the requirement on provision without charge on the RFS. I also note clause 46 (3) which states ‘The worker must not intentionally misuse or damage the equipment’, but I’d suggest alterations for proper fit or to display badges etc would not fall under that clause.
2. RFS PPC is funded from the NSW Rural Firefighting Fund. Given that individual RFS members are none of local government, state government or insurance companies, what explicit legislation would legally empower the RFS to collect such funds from members and use for the purchase of their PPC?
3. Could charging RFS volunteer members a ‘fine’ equivalent to the value of any replacement ‘altered’ PPC be legal in its issuance and enforcement? I can find nothing at all that mentions fines as an available disciplinary action in any RFS policy document relating to discipline matters.
4. Any other thoughts or opinions on this matter?

Is the captain making it up?

I don’t know the answer to that question but I’m going to assume that he or she is not making it up and this is at least what’s been communicated to them from ‘higher up’.  If they are ‘making it up’ ie if it’s just their interpretation of Service Standard 5.1.5 Protective Clothing and Accessories and their attitude to what they’ll spend their brigade budget on then it’s irrelevant.

So for the sake of the argument I’ll assume that the message from the Captain does reflects the RFS position.

Service Standard 5.1.5 Protective Clothing and Accessories

As I said at the start I think this is really an exercise in semantics. As my correspondent has noted, RFS Service Standard 5.1.5 says, at [2.5]

PPC garments are not to be modified or changed in any way.

There are two attached Standard Operating Procedures (SOPs).  SOP 5.1.5-1  Protective Clothing and Accessories – Bush Fire and Non-BA Firefighting says at [2.1(f)] ‘Epaulettes, name, rank, brigade and certification badges must, where affixed, be in the locations as detailed in Appendix 2’.  There is however not appendix 2 to that SOP.

SOP 5.1.5-2 Protective Clothing and Accessories – Structural and BA Firefighting also says (at [2.1(d)] ‘Epaulettes, name, rank, brigade and certification badges must, where affixed, be in the locations as detailed in Appendix 2’ and there is an appendix 2 to this SOP. The Appendix 2 has the following version control details:

Date: 22 September 2010

SS 5.1.5 Protective Clothing and Accessories

Version 5.0

SOP 5.1.5-2

That is, it specifically refers to SOP 5.1.5-2, not 5.1.5-1.  Even so the Appendix does provide images of both Bush Fire and Non-BA Firefighting as well as Structural and BA Firefighting jackets and details where the ‘Epaulettes, name, rank, brigade and certification badges’ should be placed on both sets of PPC. One can infer that even though there is specific reference only to SOP 5.1.5-2, this is Appendix 2 to Service Standard 5.1.5 and the Appendix 2 referred to in SOP 5.1.5-1.

So, is sewing ‘name, rank, brigade and certification badges’ onto the uniform pocket flaps altering, modifying or changing the uniform?  On a literal interpretation it has to be.  The Oxford Dictionary (online) defines ‘alteration’ as ‘a change to something that makes it different’. For ‘alter’ the dictionary says ‘to become different; to make somebody/something different’; but as a transitive verb the dictionary says ‘alter something to make changes to a piece of clothing so that it will fit you better’.

As noted, a worker ‘must not intentionally misuse or damage the [provided PPE] equipment’ Work Health and Safety Regulation 2017 (NSW) r 46(3)).  My correspondent says ‘I’d suggest alterations for proper fit or to display badges etc would not fall under that clause’ but it is not clear why not.  To again refer to the Oxford Dictionary (online) damage is ‘physical harm caused to something which makes it less attractive, useful or valuable’. An alteration that means the PPC no longer meets the Australian standard makes the PPC less useful or valuable (but it may make it more attractive if it fits better) so that would be damage.

Herein is the problem.  Obviously, there is a relevant Australian Standard. I can’t comment on the standard itself as Standards Australia only make these available for a fee but that is in fact going to be part of my point.  If the RFS buys PPC that meets the Australian Standard they can issue it to the members.  If the members then ‘alter’ the PPC they may or may not alter it in such a way that it no longer meets the standard that is they can’t know if there alteration is also damage.  The member won’t know (unless they’re a tailor) and neither will any supervising officer.  They probably cannot access the standard and probably couldn’t tell even if they could access the standard.  My correspondent has said ‘The usual only other alteration traditionally done by members and this has occurred for years has been taking up of trouser legs (using a non flammable thread such as kevlar thread)…’ but how does anyone know whether a particular member used a Kevlar thread and not traditional cotton? And how does anyone know what the standard for seams on firefighting PPC requires?

There are a myriad of ways to write regulations.  For example the WHS Act says that it is the duty of a person conducting a business or undertaking (a PCBU) to ‘ensure, so far as is reasonably practicable, the health and safety of: (a) workers…’ (Work Health and Safety Act 2011 (NSW) s 19).  That is non-specific and imposes the obligation upon the PCBU to determine what is required in all the circumstances, and to face criminal penalty if they get it wrong.

Compare that to the Road Rules 2014 (NSW) cl 20 that says ‘A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.’  Once you know the speed limit for the stretch of road and the speed at which the vehicle was driving then you know whether or not an offence has been committed.  There is nothing about the driving being dangerous in the circumstances. IF there was police and court time would be spent arguing about the merits of a case.  So here is a simple, measurable rule that allows police to use speed measuring devices and avoids unnecessary arguments where minds could differ on what is safe and what is not.

So too a rule to the effect that PPC must not be ‘altered’.  The member can’t know what makes an alteration dangerous (and therefore damaged) or not and neither can the supervising officer.  So you make a blanket rule – don’t alter your PPC and everyone can know what is required to comply and everyone can know whether there’s been compliance or not.

That doesn’t mean every alteration would be a breach of the WHS Regulation. If there was a prosecution for that offence then a member could lead evidence that whatever alteration they made did not detract from the PPCs protection and that it still met the relevant safety standards.  That would not be ‘damage’ and so would not be an offence even if it was a breach of the Service Standard.

What of the permission to sew on ‘name, rank, brigade and certification badges’? Does that constitutes an ‘alteration’ modification or change? It’s not an alteration if alteration, in context, means ‘to make changes to a piece of clothing so that it will fit you better’ but it has to be a change from how the uniform was provided.  One hopes that the placing of badges has been discussed with the manufacturer and it has been determined that it does not impact on the PPC effectiveness.  Assuming that is the case, one could read Service Standard  5.1.5 as saying ‘PPC garments are not to be modified or changed in any way other than provided in this Service Standard’.  But one can agree that the Service Standard does appear to be internally inconsistent.

The issue comes down to what do the words ‘alter’, ‘modify’ ‘change’ and ‘damage’ mean in context, hence my assertion at the start that this is an exercise in semantics.  The critical issue has to be that the PPC retains its functionality and provides protection to firefighter as required by the standard.  If ‘alter’, ‘modify’ or ‘change’ mean “’alter’, ‘modify’ or ‘change’ in a way that means the PPC no longer meets the relevant standard’ then you can see why making an alteration so that it ‘will fit you better’ is problematic. If a member starts cutting cloth or sewing seams they may well affect the ability of the PPC to protect.  Equally sewing badges on the uniform could have that effect (what do I know, I’m not a tailor) but one can infer that the RFS and the manufacturer accept that putting badges on the pocket flaps does not have that effect hence both giving permission to do so but also insisting where those badges go.  In that case sewing on the badges is not an alteration, modification or change that impacts upon the PPC’s ability to provide protection.

Conclusion on alter, modify or change

It would be my view that Service Standard 5.1.5 has to be read in context to mean that the PPC can’t be modified other than by applying name, rank, brigade and certification badges as these do not affect the ability of the PPC to protect (and, we hope, has been endorsed by the manufacturer).  For the purpose of the standard this is not a modification or change but rather part of the uniform.

The rule ‘PPC garments are not to be modified or changed in any way [other than described in the Service Standard]’ is a way to make a simple rule.  If the rule said ‘PPC garments are not to be modified or changed in any way that impacts upon their ability to protect’ it would be impossible to enforce or know when that applies so it makes sense to make the blanket prohibition.

Can the RFS make you pay for replacement PPC?

Rural Fire Service Service Standard 5.1.5 says, at [1.5]

In line with AFAC terminology, PPC is used for clothing (eg. Bush fire jacket and pants etc) while PPE is used for equipment (eg. helmet, goggles etc).

The Work Health and Safety Act and its Regulation do not make that distinction using only the term ‘personal protective equipment’.  Where the Act or Regulation refer to ‘personal protective equipment’ (or PPE) that includes PPC using the fire service language.

As my correspondent has noted the Work Health and Safety Regulation 2017 (NSW) r 44 says:

(2) The person conducting a business or undertaking who directs the carrying out of work must provide the personal protective equipment to workers at the workplace…

(3) The person conducting the business or undertaking … must ensure that personal protective equipment provided under subclause (2) is:…

(b) maintained … so that it continues to minimise risk to the worker who uses it…

(4) The person conducting a business or undertaking … must provide the worker with information, training and instruction in the:…

(b) … maintenance of personal protective equipment.

The RFS does provide the personal protective equipment when it supplies the PPC to members. Service Standard 5.1.5 with both provisions on the placing of badges and the edict that the PPC is not to be ‘be modified or changed in any [other] way’ are the instructions on the maintenance of that equipment.  The edict from the brigade captain (assuming it reflects RFS policy) could be seen as part of the RFS’ effort to ensure that the PPC is maintained to meet its safety purpose.

Regulation 46 relates to the duties of a worker (which includes a volunteer) with respect to PPE. That regulation says:

(2) The worker must, so far as the worker is reasonably able, use or wear the equipment in accordance with any information, training or reasonable instruction by the person conducting the business or undertaking.

(3) The worker must not intentionally misuse or damage the equipment.

Altering the PPC, other than in ways permitted by the Service Standard, would be to fail to use the equipment in accordance with the instructions and should it in fact affect its protection ability, would ‘damage’ the PPC.

As noted there could be an argument.  If a member did alter their PPC and could demonstrate that it did still meet the standard then I would agree there has been no ‘damage’ and there would be no need to stop their using their altered PPC; but that simply returns us to the starting question of how would anyone know?

Let us assume that the RFS issues PPC that the member then alters such that the RFS cannot know that it still meets the standard and provides the level of protection that a member should have on the fireground.  Why can’t the RFS insist that the member buy the replacement uniform? If they want the member to continue to turn out they would have to provide new PPC and then chase up the cost as a debt due.  Alternatively, they could refuse to provide new PPC until its paid for, during which time the member would not be able to respond to a fire.

The right to recover would have nothing to do with a question of whether an individual has to contribute to the firefighting fund or that it is akin to a fine.  It is instead a claim for damages.  If you damage my property I can make you pay for it.  doubt that the Crown actually transfers ownership of its uniform to its members – you don’t actually own the issued PPE.  If the RFS (the Crown) retains ownership of its uniform and you damage it then the Crown can ask you to pay for it in the same way that anyone can seek damages from someone who damages their own property.

In essence the worker can’t be required to pay for PPC that is required for the job, but they can be required to pay for PPC they have damaged.  And if the PCBU refuses to issue new PPC until the old has been paid for, then they can also direct the member not to turn out. In other words, if the RFS takes the view that PPC that has been altered is unable to be used but new PPC will be issued until the old is paid for, they not only cannot expect a member to turn out, they would have to insist that the member did not turn out.

Conclusion

To avoid the semantic debate it may be helpful to make some changes.  Service Standard 5.1.5 should, perhaps, say ‘PPC garments are not to be modified or changed in any way other than provided in this Service Standard’.

The Brigade Captain’s email (assuming it reflects RFS policy) should perhaps say “If any PPC has been altered it is unable to be used and you will not be re-issued PPC until you have reimbursed the RFS for the cost of the damaged PPC…”

Finally if making alterations such as shortening the leg length in no way affects the protection afforded by the PPC then there is no reason to prohibit that action save that neither the member nor the RFS can know whether a particular alteration has or has not affected the integrity of the PPC.  Given that a blanket rule against alterations makes sense but as with the badges, if the manufacturer says ‘it’s OK to ….’ then whatever’s OK should be allowed.